MAR-2-05 CO:R:C:V 734524 ER
Mr. Ed Baker
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919-9703
RE: Country of Origin Marking for Frozen Meals from Canada;
Ultimate Purchaser; Airlines; 19 U.S.C. 1304(a)(3)(D);
19 CFR 134.32(d); 19 CFR 134.1(d); HQ 729477 revoked.
Dear Mr. Baker:
This is in response to your letter of February 17, 1992, on
behalf of your client, Delta Dailyfood (Canada) Inc., 26 rue
Seguin, Rigaud (Quebec) Canada, JOP 1PO, concerning the country
of origin marking requirements for frozen meals imported by Delta
Dailyfood and sold by them to KLM airlines in the U.S. Samples
of the meal container and the master outer container were
provided.
FACTS:
The frozen meals are imported into the U.S. in individual
sealed containers with peel-off tops, measuring approximately 4"
width x 6.5" length x 1.5" depth, and which are shipped inside
master containers in sets of 30. The master cartons are clearly
and conspicuously marked "Product of Canada". Delta Dailyfood
sells the meals to KLM Airlines in the U.S. The frozen meals are
never sold individually at retail or otherwise.
No details were provided regarding the manner of preparation
required prior to serving the meals to the passengers, nor were
the contents of the meal described. From looking at the sample
provided of an individual container (which features on it the
words "chicken, apple, almond and raisins"), we assume that
before service the frozen meals only require heating.
The meals are not consumed in the U.S. but are instead
served to passengers during trans-atlantic flights as a part of
KLM's overall service. The food service is a complimentary
service covered by a tariff to this effect which is on file with
the U.S. Department of Transportation. The meals are not sold
for separate consideration.
In your submission you included copies of correspondence
from KLM to Delta Dailyfood; from the Food and Drug
Administration ("F.D.A.") to Delta Dailyfood; from the Canadian
Department of Agriculture, Meat and Poultry Products Division, to
Delta Dailyfood; and from the U.S. Department of Agriculture,
Food Safety and Inspection Service ("F.S.I.S.") to the Canadian
Department of Agriculture, Meat and Poultry Products Division.
From this correspondence it is made apparent that F.D.A. does not
regulate such meals so long as the they are used on flights which
depart the U.S. and fly to Europe or any other foreign
destination without additional stops in the U.S. or its
territories. Furthermore, F.S.I.S. exempts frozen meals prepared
for airline customers from U.S. meat and poultry inspection if
they are in transit in the U.S. and are intended for use on
international flights that do not make additional stops in the
U.S. F.S.I.S. requires no notification upon importation, nor any
permit or authorization to import these products.
ISSUE:
Who is the ultimate purchaser of the frozen meals that are
served to passengers on KLM trans-atlantic fights?
Are the individual frozen meals excepted from country of
origin marking?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304) provides that, unless excepted, every article of foreign
origin imported into the U.S. shall be marked in a conspicuous
place as legibly, indelibly, and permanently as the nature of the
article (or container) will permit, in such a manner as to
indicate to the ultimate purchaser in the U.S. the English name
of the country of origin of the article. Congressional intent in
enacting 19 U.S.C. 1304 was that the ultimate purchaser should be
able to know by an inspection of the marking on the imported
ngoods the country of which the goods are the product. Part 134,
Customs Regulations (19 CFR 134), implements the country of
origin marking requirements and exceptions of 19 U.S.C. 1304.
Among the exceptions to country of origin marking is 19
U.S.C. 1304(a)(3)(D), also provided for in section 134.32(d),
Customs Regulations (19 CFR 134.32(d)). That section provides
that articles for which the marking of their containers will
reasonably indicate the country of origin of the articles may be
excepted from country of origin marking. However, for the
exception to apply Customs must be satisfied that the articles
will reach the "ultimate purchaser" in the original, properly
marked containers in which the articles were imported. Section
134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the
"ultimate purchaser" as generally the last person in the U.S. who
will receive the article in the form in which it was imported.
In an information letter, HQ 732988 (May 30, 1990),
surmising that the ultimate purchaser of frozen food meals would
be the airline rather than the passenger, Customs found that such
frozen meals would probably be excepted from individual marking
so long as the ultimate purchaser (the airline) received the
meals in bulk with proper marking on the outermost container in
which they were imported. This remains Customs' position.
In Legal Determination 79-0382 (HQ 710493 dated July 17,
1979), Customs found that the ultimate purchaser was not
necessarily the ultimate user or consumer. In that case,
dinnerware was imported for sale by the importer to a company
that resold it to an airline company for its use in serving in-
flight meals. The airline company received the dinnerware in the
original, unopened and properly marked bulk containers. There
Customs found that the ultimate purchaser was the airline
company, not the airline passenger, and the dinnerware was
excepted from marking as provided for in 19 U.S.C. 1304(a)(3)(D).
However in HQ 724335 (January 16, 1984), Customs found that
airline passengers were the ultimate purchasers of plastic cups
and glasses of durable nature which the passengers could keep.
Accordingly, the cups and glasses had to be marked with country
of origin. The distinguishing factor between these two decisions
which was determinative as to whether the imported goods should
be marked was the fact that in the former decision the passengers
could not take the goods with them for use elsewhere, and in the
latter decision they could. Contra, HQ 729477 (May 2, 1986)
(where Customs found that the ultimate purchasers of air sickness
bags were the individual airline passengers who received the bags
incidental to the service of air transport for which
consideration was paid and for whose convenience they were made
available -- hence, the bags had to be marked with country of
origin.)
For what purpose and in what manner imported goods are to be
used has been the focus of several marking decisions which are
relevant in the instant case. When imported goods are purchased
by an employer for use exclusively at work by its employees, the
imported merchandise has been excepted from country of origin
marking. See HQ 734304 (January 28, 1992) (disposable
industrial work coveralls distributed free of charge to employees
at an industrial plant (the ultimate purchaser) for use on the
job are excepted from individual marking); and HQ 732793
(December 20, 1989) (employers are the ultimate purchasers of
industrial work gloves distributed free of charge to employees on
the job for use at work; such gloves are excepted from individual
marking). Similarly, imported goods purchased by hospitals for
use exclusively on the premises by staff or patients have also
been excepted from individual marking. HQ 730945 (August 11,
1988) (hospitals are the ultimate purchasers of imported patient
identification bracelets; such items are excepted from individual
marking); HQ 715640 (June 16, 1981) (hospitals are the ultimate
purchasers of imported disposable paper shoe covers, head covers,
drape sheets, gowns, towels and other similar products, none of
which have to be individually marked to indicate country of
origin); HQ 723745 (February 6, 1984) (hospitals are the ultimate
purchasers of imported surgical masks; such items do not have to
be individually marked); and HQ 730840 (January 12, 1988)
(hospitals are the ultimate purchasers of imported surgical
gloves; such gloves are excepted from individual marking).
Like imported items purchased by employers and distributed
to their employees for use only on work premises and like the
various imported items used by hospital staff and patients while
on hospital premises, prepared frozen meals are purchased by the
airline only for passenger consumption on the airplane during
flight. In none of these situations is the imported merchandise
ever otherwise sold or intended for retention and use other than
on site or in flight. Accordingly, Customs believes that the
ultimate purchaser of the frozen meals is the airline, KLM, and
not the passenger. Therefore, so long as KLM continues to receive
the frozen meals in properly marked master cartons, the
individual meals may be excepted from country of origin marking.
To the extent that HQ 729477 supra is inconsistent with this
ruling it is hereby revoked.
HOLDING:
For purposes of country of origin marking, the ultimate
purchaser of frozen airline meals is the airline and not the
airline passenger. Accordingly, pursuant to 19 U.S.C.
1304(a)(3)(D) and 19 CFR 134.32(d) the packaged frozen meals are
excepted from individual country of origin marking so long as the
ultimate purchaser, KLM, receives the frozen meals in bulk in the
original, unopened master cartons which are properly marked with
country of origin.
Sincerely,
John Durant, Director
Commercial Rulings Division